McGlinchey Stafford: Taxing Times For Businesses With Operations, Customers In Louisiana

NEW ORLEANS – Legislative provisions targeting businesses are continuing to advance through the current Louisiana legislative session. While the legislature's contemplated repeal of the Louisiana corporation franchise tax might be welcome, other provisions will make up for any slack in tax revenues from business taxpayers.

         According to law firm McGlinchey Stafford, no industry will be left untouched by the tax implications in the current crop of bills as the legislature struggles to fill a large whole in the state budget. Regardless of the industry, they say all businesses should take the precautions necessary to implement revised taxing provisions, prepare for additional liabilities and adhere to new procedures.

         Most of the bills are effective July 1 of this year, although there may be some relief provisions effecting certain credit exclusions and deductions enacted to help taxpayers filing returns after that date pursuant to timely filed extensions.

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         The following is a summary of some tax bills moving forward in the current legislative session prepared by the lawyers at McGlinchey Stafford.


• Phaseout of State Corporate Franchise Tax

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         HB 828 proposes to phase out the franchise income tax. In the reengrossed version, the bill operates by decreasing the franchise tax rate for each taxable year beginning with tax years beginning on or after January 1, 2016. The phase out will be complete for tax years beginning on or after January 1, 2020, when the bill affirmatively states that no franchise tax shall be levied in the state. HB 828 was recently ordered to the Senate where, on June 1, it was referred to the Committee on Revenue and Fiscal Affairs.


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• Remote Vendor Nexus Bills


         HB 355 and HB 555, which provide for the collection of sales and use taxes by remote dealers, are pending Senate Finance approval and scheduled for June 3, 2015. These bills expand the definition of "dealer" for sales and use tax purposes and require remote dealers to collect and remit sales and use tax and to electronically file Louisiana sales and use tax returns. If passed, the definition of "dealer" will also include manufacturers of tangible personal property; those who solicit business by compensating Louisiana-based referral sources (with a rebuttable presumption of dealer status if the person derives over $50,000 in cumulative gross receipts from sales of tangible person property to customers in Louisiana as a result of such referrals); those who sell the same or substantially the same line of products as a Louisiana retailer; those who solicit business and develop a market in Louisiana through the use and compensation of a Louisiana-based affiliated agent; persons holding a substantial ownership interest, directly or through a subsidiary, in a retailer maintaining sales locations in Louisiana; and persons who are owned in whole or substantial part by a retailer maintaining sales locations in Louisiana.

         The Senate Committee proposed an amendment which would allow taxpayers from whom dealers collect this tax to obtain a refund if the taxpayer either shows that the appropriate use tax return has been filed, along with proof of payment, or provides an affidavit affirming that the delivery and use of the property will be in a parish with no use tax imposed. The proposed law would apply to tax periods beginning on and after July 1, 2015.


• Reduction of Exemptions/ Exclusions impacting Manufacturing among others


         HB 768 proposes to reduce numerous exemptions and exclusions from sales taxes by making them applicable to only 3% of the state's 4% rate. A few of the many exemptions and exclusions affected include those allowed for separately-billed installation charges, rebates on new vehicles, manufacturing machinery and equipment, items consumed in the manufacturing process, sale for lease or rental, pollution control devices, various exemptions related to services, and annual sales tax holidays. There has been no activity with this bill since early May.


• Sales and Use Tax Modernization Study Commission Authorized


         HB 471: Members of the Louisiana legislature have realized that the current state and local sales tax system in Louisiana is rapidly becoming dated with the introduction of new types of business and sales platforms. HB 471 seeks to help Louisiana modernize its state and local sales tax statutes through creation of the Sales Tax Streamlining and Modernization Commission. This Commission will be comprised of 19 members consisting of a variety of individuals and stakeholders including members of the legislature, the Department of Revenue, and local taxing interests. The thrust of the Commission's duty will be to conduct studies relating to how current Louisiana state and local sales tax policy affects the economy of the state in comparison to areas with similar demographics and economies. Specifically, the Commission will be tasked with studying how the introduction of a broad-based tax on services might impact revenue, the efficiency of Louisiana's sales tax collection and audit procedures, and a comprehensive study of special tax treatment, including credits, deductions, exclusions, exemptions, and rebates. After a favorable vote in the House, on June 1, this bill was referred to the Senate Committee on Revenue and Fiscal Affairs.


• Twenty Percent Across-the-Board Reduction in Tax Benefits


         HB 624 contains several different measures intended to increase revenue that all operate in the same manner. Specifically, this bill reduces the complete exclusion from certain taxes for credit unions, mutual savings banks, and electric cooperatives to an 80% exclusion. In addition, this bill reduces the complete exclusion from gross income for both interest received from Louisiana obligations and funds accrued by a corporation operating a public transportation system to an 80% exclusion. HB 624 also reduces a number of deductions from a complete deduction to an 80% deduction, including refunds of Louisiana corporate income tax receiving during the year, funds received by a corporation engaged in operating a public transportation system, interest on Louisiana obligations and securities, deductions related to certain casualty losses, certain dividends, and certain benefits provided for hurricane recovery. In addition to these deductions, this bill also proposes to reduce the net operating loss available for use in a given year to 80% of the Louisiana loss incurred in the preceding year. This bill also reduces the allowances and deductions related to depletion for oil and gas wells. While this bill experienced activity early in the legislative session, there has been no activity with respect to HB 624 since it was recommitted to the Senate Committee on Finance on May 19.


• Unclaimed Property Law Tweaks


         This bill proposes changes relating to the unclaimed property law impacting banks and financial institutions. Specifically, this bill expands the ways in which an owner can show "interest" in his property thereby interrupting the abandonment period. Under this bill, an indication of an owner's interest in the property would be shown by a one-time or recurring electronic transaction authorized by the owner as well as accessing a deposit account through the website of the financial organization. This bill has moved from the House to the Senate, where it was reported on favorably by the Senate Committee on Finance. One June 2, this bill was referred to the Legislative Bureau.


• Film Tax Credit Provisions


         SB 105 and SB 106 are pending House final passage and scheduled for floor debate on June 4th, 2015. If passed, the bills will amend the motion picture investor tax credit under La. R.S. § 47:6007. SB 105 proposes to allow the Department of Revenue to recover the film tax credits from individuals who own interests in certain business entities that were created for the purpose of receiving or selling film tax credits. SB 106 provides for invalidation of motion picture investor tax credits if they were granted in violation of the applicable law or regulations or if an investor who was granted a film tax credit has been convicted of a criminal violation related to such credits, prohibits a motion picture production company from being owned in any part by a company or person who has been convicted of a criminal violation relating to the credits or who was granted such tax credits in violation of the applicable law or regulations, and exempts the application of such provisions to good faith transferees of the credits. Further, HB 604 also touches on the motion picture investor tax credit under La. R.S. § 47:6007, but is broader in scope and affects each of the five state tax credit programs related to the entertainment industry. Whereas each of those tax programs currently require cost reports of expenditures to be submitted to the Department of Economic Development (DED) for a determination of eligibility, certification, and the granting of the tax credits, HB 604 would require CPAs or tax attorneys retained by the DED (as opposed to the tax credit applicants themselves) to provide an independent verification report of the expenditures submitted by a production company. The proposed law also requires that tax credit applicants make all related records available to the CPA preparing the verification report and to pay a "verification report fee" not to exceed $25,000 to reflect the actual cost of the report. Only those expenditures which are confirmed as verified within the verification report submitted by the CPAs are eligible for tax credit certification under HB 604. This bill was reported favorably by the Committee on Ways and Means on May 19th and has since been referred to the Committee on Revenue and Fiscal Affairs for further debate.


• Increase in Tax on Business Utilities


         HCR 8 temporarily suspends the 0.97% tax exemption for all business utilities on the state sale and use tax levied on the sales of steam, water, electric power or energy, and natural gas. HCR 8 is drafted to be operative for only the period from its enactment to sixty days after final adjournment of the Louisiana Legislature's 2016 Regular Session. This bill experienced activity early in the legislative session, including favorable reporting by the Committee on Revenue and Fiscal Affairs, but it was recommitted to the Senate Committee on Finance on May 19th and is currently under debate.


• Solar Tax Credit Provision


         HB 779 makes various changes to the state's solar energy systems tax credit, including a repeal of the credit for solar thermal systems. The proposed law changes the effective period for solar tax credits for purchased systems, modifies when the tax credit may be claimed, and reduces the maximum amount of the credit allowed when such systems are installed during portions of the new effective period. Similar treatment is also given to leased systems, with the proposed law also adding a $10 million annual cap on the amount of tax credits available to those who install eligible solar systems through leasing, which cap is effective in calendar years 2015, 2016, and 2017. HB 779 also requires the submission of certain information when claiming a solar tax credit, regardless of whether the system was purchased or leased, such as proof of installation, information on the solar panels, the terms of any financing for the system, and forms for the sworn statements to be issued by the dealer and installer regarding the system's size. HB 779 is currently committed to the Committee on Finance and has received little activity since being reported favorable by the Committee on Revenue and Fiscal Affairs on May 18th.


• BTA Clean Up Bill


         HB 338, which introduces a number of procedural provisions, primarily with respect to the Board of Tax Appeals ("BTA"), has been adopted in House concurrence. Key provisions of this bill include establishing the Local Tax Division of the BTA as an independent agency within the BTA and tweaking the local tax judge position; adding remedies for the collection of taxes by collectors, such as reconventional demand and third-party demand, in any court or before the BTA; providing additional circumstances in which prescription of both assessment and refunds may be suspended; establishing an Escrow Account for the BTA; and increasing notice requirements and allowing taxpayers to rely on the date of a notice of disallowance of a refund claim in determining timeliness of an appeal to the BTA.

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